In Re: Grand Jury Investigation ( 2009 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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In re Grand Jury Investigation § Misc. No. 09-39 (RCL)
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JUL 27 2009
NANCY MAYER WHI`|T#GTON CLEBK
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The Court’s June 10th memorandum and order in this matter, which was
previously sealed, is being released in redacted form for the benefit of the parties
and the public. Some information in the opinion has been redacted as it is secret
under F ederal Rule of Criminal Procedure 6(e). The remainder of the opinion is
not protected by Rule 6(e). Accordingly, it is hereby ordered that the redacted
opinion attached hereto be unsealed and placed on the public record.
so oRnERED this 1_¢ dz'“ay ofJuly 2009.
RoY E c. L'AMBERTH
Chief judge
United States District Court
FILED
UNITED STATES DISTRICT COURT
FoR THF. DISTRICT oF coLUMBIA JUN 1 ll 2009
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In re Grand Jury Investigation § Misc. No. 09»39 (RCL)
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MEMORANDUM AND ORDER
The District of Coiumbia has requested that this Court order the release of
the Metropolitan Police Department’s final Foree investigation Team ("FI'I"’)
report and its attachments, both of which contain information obtained by a grand
jury investigation into the shooting death of DeOnteRawlings._ Mo.tz'onforj an
Urder Authorizz'ng the Disclosure of Grand Jury Material [l], at l [hereinafter
Motz'on]. The District has also requested that this Court authorize Metropolitan
Police Depanment ("MPD”) Sergeant Ralph Wax, who assisted the grand jury
investigation and authored the FIT report, to testify about his role in the grand jury
investigation Id. The District contends that it needs this information to help
mount its defense in a wrongful death lawsuit brought by De()nte Rawiings’s
faniily. Having considered the District’s motion, the opposition by the United
States, and the replies thereto, as well as having held a hearing on the issue, the
District’s motion is denied for the reasons set forth bel0w.
I. BACKGROUND
DeOnte Rawlings was shot and killed by an off-duty MPD oft`xcer, James
Haskel, on September l7, 2007. Government's Oppositic)n to Motz`onfor an Order
Authorizing Di.s'closure ofGrand Jury Material [5], at 2 [hereinafter Gov 't
Opposz`tion]. By September 19, 2007, the United States Attomey’s Oft`ice for the
District of Coiumbia ("USAO"), the FBI, and MPD agreed that a grand jury
investigation into the shooting would he conducted ld. On September 20, 2007,
the District presented a preliminary FI'I` report to the USAO,‘ and the grand jury
began its investigation on Septernber 25, 2007 . Id. Rawlings’s parents filed suit
against the District and Ofticers Haskel and Anthony Clay on October 23, 2007.
After several months of investigation, the grand jury declined to return an
indictment against the officers on May 1, 2008.
Aher the grand jury investigation concluded, MPD conducted an
administrative review of the shooting. As part of the administrative review, Sgt.
Wax authored a final FIT report, using information largely obtained by the grand
jury investigation Ia'. at 3-4. Among other things, the report contained
summaries of witness statements obtained by the grand jury investigation, which
are secret under Federal Ruie of Criminal Procedure 6(e). The report also
included information obtained prior to the institution of the grand jury
x Because this preliminary FIT report was produced independently of the grand jury
investigation, it may be produced without violating Rule 6(e).
investigation and from independent, unrelated investigations, which is not subject
to Rule 6(e).
While the use of information obtained by the grand jury in the Fl'l` report
was itself a violation of Rule 6(e), the violation was compounded as the FIT report
was circulated to the MPD officers conducting the administrative review as well as
the Office of the Attorney General for District of Coiumbia ("OAG"), which was
conducting the District’s defense in the civil suit. Once the USAO became aware
of the distribution of the FIT report, it notified this Court and took action to secure
the copies of the report that had been distributed Atterwards the USAO provided
the OAG with a redacted copy of the FIT report, which was then produced in the
civi! suit. i'l`he District now asks that this Court allow disclosure of the final,
unredacted FIT report for its use in the civil suit.
II. LEGAL STANDARDS
Federal Rule of Crirninal Procedure 6(e) governs the secrecy of grand jury
proceedings and the standards for disclosure of such information The Supreme
Court has consistently recognized the importance of secrecy to the proper
functioning of the grand jury. See Douglas Oz'l Co. of Ca. v. Petrol Stops Nw., 441
U.S. 21 l, 218 (1979) (citing United States v. Procter & Gamble Co., 356 U.S. 677(1958)). 'I`he protection afforded by Rule 6(e) is "necessarily broad." Fund for
Constitutional Gov ’t v. Nat '1 Arckz'ves and Record Serv., 656 F.Zd 856, 869 (D.C.
Cir. 1981) (citing .S'EC v. Dresser Indus., Inc., 628 P.Zd 1368, 1382 (D.C. Cir.
1980) (en banc)). it covers "not only the direct revelation of grand jury
transcripts, but also disclosure of information which would reveal ‘the identities of
witnesses or jurors, the substance of testimony, the strategy or direction of the
investigation, the deliberations, or questions of the jurors, and the like."’ Id,
And while matters before the grand jury are generally secret, several
narrow exceptions to this rule exist See In re Sea!ed Case, 250 F.Bd 764, 769
(D.C. Cir. 200l) (citing United States v. Sells Eng'g, Inc., 463 U.S. 418, 425~427
(l 983)) (stating exceptions to Rule 6(e) are to be narrowly construed). Rule
6(e)(3)(E)(i) allows a court to disclose such information in connection with a
judicial proceeding should it choose to and subject to any conditions that it
imposes.
In order to obtain disclosure under Rule 6(e)(3)(E)(i) a party must show a
particularized need for the sought-after material In re Sea!ed Case, 250 F.3d 764,
77l (D.C. Cir. 2001) (citing Douglas Oil, 441 U.S. at 222). This showing can be
made if the movant establishes (l) that the material is needed to avoid a possible
injustice in another judicial proceeding, (2) that the need for disclosure is greater
than the need for continued secrecy, and (3) that the request is structured to cover
only the material needed. Douglas Oz°l, 441 U.S. at 222. This showing must be
made even when the grand jury whose materials are sought has concluded its term,
for a court must "consider not only the immediate effects upon a particular grand
jury, but also the possible effect upon the functioning of future grand juries. . . .
Thus, the interests in grand jury secrecy, although reduced, are not eliminated
merely because the grand jury has ended its activities." Id. Ultimately, the
decision to disclose grand jury materials is left to the substantial discretion of the
district court. Id. at 223; see also Pz`ttsburgh Plate G!ass Co. v. United States, 360
U.S. 395, 399 (1959).
III. FlT REPORT
A. Possible Injustice
The District argues that it needs access to the unredacted final FIT report so
that it may "defend itseli" in the Rawliiigs’s lawsuit. Moti‘on at 5. In particular, it
seeks access to "witnesses who reportedly observed the incident between the
officers and DeOnte Rawlings."z Id. at 6. The District also seeks to have the
author ot‘ihe FIT repoit, Sgt. 'Wax, testify as to its contents.$
'I`he District expresses a particular interest in a statement from "Civilian
Witness # 1." 4 Motion at 6. Civilian Witness # 1 identified two sources of
gunfire the night of the shooting, a fact which was left unredacted in the report
provided by the United States because it was obtained from a source independent
2 in its original motion the District sought the identities and statements of several MPD
officers involved in the investigation, Motz`on at 5, however, as the District acknowledged
that it had independent knowledge of these ofiicers’ identities, it dropped its request for
disclosure of these ofiicers’ statements in its reply, Reply at l.
3 Sgt. Wax is bound to secrecy as disclosure of grand jury information was made to him
under Rule 6(e)(3)(A)(ii). See FBD. R. CRIM. P. G(e)(Z)(B)(vii).
4 It is unclear from the briefs which witnesses the District seeks access to testified before
the grand jury or merely provided statements to investigators acting on behalf of the
grandjury. Whether or not they ultimately testified is immaterial to this Court’s
consideration of disclosure because the statements of the witnesses given during the
grand jury investigation, and summaries of those statements like those in the FIT repoit,
are stiii protected by Rule 6(e). in re GraridJury Investz'ga¢ion, 697 F.Zd 51 1, 512 (3d
Cir. 1982)~, Marti`n v. Consultants & Administrators, Inc., 966 F.Zd 1078, 1097 (7th Cir.
1992).
of the grand jury investigation [a'. Although the District says that it does not who
Civilian Witness # l is apart from the grand jury investigation, z'd., the United
States has said Civilian Witness # 1 was interviewed by MPD officers the night of
the shooting, that is, before the grand jury even began its investigation Gov ’t
Opposz`tz'on at 7-8.
The District does not state why it needs disclosure of the testimony of
Civilian Witnesses 2 and 3. Should it seek such information, the United States
points out that Civilian Witness # 3 was interviewed the night of the shooting by
MPD, which was before the grand jury investigation began ld. at 8. Since his
identity is known to the District apart from the grandjury investigation, he could
be interviewed and deposed. Civiiian Witness #2 was arrested on an unrelated
matter and volunteered information about the Rawlings shooting to MPD officers
who were not involved in the grand jury investigation !d. Only afterwards was
he interviewed by the officers assisting the grand jury investigation Id. So
Civilian Witness # 2 also could be interviewed or deposed by the District since his
identity is likewise known to them apart from the grand jury investigation.
The District replies that Sgt. Wax was advised that the identity of these
three witnesses were subject to Rule 6(e), and as such he could not identify them
information developed outside and independently of the grand jury investigation is
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not subject to Rule 6(e). In re Grand Jwy .S‘ubpoena, 920 F.2d 235, 241 (4th Cir.
1990); Wask. Pos! Co. v. Dep 't of Justice, 863 F.Zd 96, 100 (D.C. Cir. 1988);!)1 re
Grana'./ury Investz`gatz`on, 610 F.Zd 202, 217 (Sth Cir. 1980).
As Civilian Witness # l and # 3 were first interviewed eight days before the
grand jury investigation began, those interviews are not protected by Rule 6(e).
And although Civilian Witness # 2 was interviewed after the grand jury
investigation began, he volunteered information about the shooting to MPD
officers who were conducting an investigation independent of the grand jury.
Based on these independent sources of int`onnation, the District can contact any
one of these witnesses and interview or depose them as part of their preparation in
the civil suit. 'Ihe Distn`et can reveal that these witnesses were interviewed by the k
police, independent of the grand jury ’s investigation, without violating Rule 6(e),
j And they can produce any documents related to those
independently conducted interviews if they have been sought in discovery, aside
from the redacted material in the FIT report itself. The District is even free to ask
the witnesses themselves if they testified before the grand jury-
("No obligation of secrecy may be imposed on any person except in accordance
with Rule G(e)(Z)(B)."); see also Butterworth v. .S'mith, 494 U.S. 624, 635 (1990)',
FED. R. CRIM. P. 6(e) advisory committee’s note (“The rule does not impose any
obligation of secrecy on witnesses").
Furtherniore, the District has not yet interviewed or deposed these
witnesses in the civil suit, nor attempted to, probably due to their misapprehension
that doing so would violate Rule 6(e). Many courts have held that there is no
showing of particularized need for grand jury information where the same
information could be obtained through normal means of discovery. See Sells
Eng ’g, 463 U.S. at 431; United States v. Procter & Gamble Co., 356 U.S. 68l, 682
(1958); see also FDIC v. Ernst & Whz`tney, 921 P.2d 83, 86-87 (6th Cir. 1990)
("The fact that the grand jury documents are relevant or that production of
them . . . would expedite civil discovery or reduce expenses for the parties is
insufficient to show particularized need when the evidence can be obtained
through ordinary discovery, z`.e., subpoenaing the documents from other sources,
or pursuing other routine avenues of investigation."); Cullen v. Margiotta, 811
F.Zd 698, 715 (Zd Cir. 1987); In re Sealed Case, 801 F.Zd 1379, 1382 U).C. Cir.
1986) (stating a particularized need could be shown where a party demonstrated
"an inability to obtain through ordinary processes, timely and diligently pursued,
the particular documents, or the particular category of documents, requested from
the grand jury."). However, the Supreme Court has also said that the fact that
information is also available through civil discovery is not a per se bar to
disclosure United States v. John Doe, Inc. I, 481 U.S. 101, 116 (l987); see also
In re Grand Jury Investigatz'on, 55 F.Sd 350, 354 (Sth Cir. 1995). Nonetheless,
the availability of information through alternative sources, like discovery, is an
important factor that may properly be considered by a court deciding whether to
order disclosurc. John Doe, Inc. I, 481 U.S. at 1 l6.
Here, such availability weighs against disclosure. Given that the District
has not attempted to notice depositions of Civilian Witnesses l-3--even though
their identities, as established independently of the grand juryinvestigation, are
known to the District-»they have not demonstrated a particularized need for
disclosing the portions of the FIT report protected by Rule 6(e). However, if after
diligently pursuing the information the District is still unable to mount its defense,
they are free to raise the issue again. See ln re Sealed Case, 801 F.Zd at 1382.
Unlike Civilian witnesses l-3, the identities of witnesses 5, 6, 7, 8, 9, 10,
11, 12, and 146 are not known to the District independently of the grand jury
investigation. As such the case that these witnesses’ identities could be
ascertained through civil discovery is more tenuous lt is possible though that
interviews or depositions may lead the District to these witnesses and the
6 The statement of Civilian witness # l3, which was taken on September l7, 2007 is not
redacted and therefore not at issue. Furthennore, as it was taken prior to the institution of
the grand jury’s investigation it is not subject to Rule 6(e).
information regarding the shooting they possess (indeed, some may have been
deposed already). However, disclosure as to these witnesses will not aid the
District’s defense, so there is no compelling need for disclosure. After review of
the unredacted FIT report, which was submitted ex parte by the United States, the
information in the statements of witnesses 5, 6, 7, 8, 9, 10, l 1, 12, and 14 -
_ N°’ "° a“*’
information that would be material to the District’s defense. Accordingly, no
injustice would be done were the material not disclosed and no compelling
purpose would be served if it were.
B. Needfor disclosure as against the need for continued secrecy
The Supreme Court has recognized five distinct interests in protecting the
secrecy of grand jury proceedings:
( l) To prevent the flight of those whose indictment may be contemplated;
(2) to ensure the utmost freedom to the grand jury in its deliberations, and
to prevent persons subject to indictment or their friends from importuning
the grand jurors; (3) to prevent subornation of perjury or tampering with the
witnesses who may testify before the grand jury and later appear at the trail
of those indicted; (4) to encourage the free disclosure of information by
those who have information regarding the investigation; (5) to protect the
reputation of those investigated who are not indicted
Procter & Gamble, 356 U.S. at 681 n.6. These reasons, however, are not
generally implicated after a grand jury has concluded its investigation 1 CHARLES
ALAN WRIGH'I` & ANDREW D. LE!POLD, FEDERAL PRACTICE AND PROCEDURE §
106 (4th ed. 2008) (citing Butterworth, 494 U.S. at 632-33 (1990);1)1 re United
States, 441 F.3d 44, 61 (Ist Cir. 2006)). And though secrecy concerns are
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lessened, some such interests nonetheless remain after the grand jury has
concluded its investigation Douglas Oil, 441 U.S. at 222. The primary remaining
secrecy interests are in protecting the identity of witnesses who testified before the
grand jury and in ensuring cooperation with future grand jury investigations Id.
In its reply, the District argues that the investigation into Rawlings’s
shooting created animosity towards law enforcement generally and MPD
particularly in the community where Rawlings lived. Reply at 3. As such, the
District believes that witnesses will likely not cooperate with its investigation for
the civil 1awsuit. Id. But this concern is hypothetical regarding those witnesses
whose identities the District knows, and the District has pointed to no instance
' where it has not received the cooperation of a witness or potential witness in the
civil suit.
The United States also recognizes that many witnesses were concerned
about their role in assisting the investigation Gov't Oppositz'on at 10. Because of
such concerns the United States assured witnesses that their identities and
cooperation with the grand jury’s investigation would remain confidential. !d.
Ultimately, such reluctant cooperation weighs against disclosure, as the Court
must consider how disclosure would affect the functioning of future grand juries.
See Douglas Oz'l, 441 U.S. at 222. Disclosure of grand jury materials from already
reluctant witnesses might chill cooperation with future grand jury investigations
See Butterworth, 494 U.S. at 630; Illinois v. Abbott & Assoc., 460 U.S. 556, 567
n.ll (1983); Pakistan lnt 'l Airlz'nes Cor;p. v. MoDonnell Douglas Corp. , 94 F.R.D.
ll
566, 568 (D.D.C. 1982). Such cooperation would be further eroded if the United
States were seen as having reneged on its promise of confidentiality in exchange
for cooperation. See Cullen, 811 F.Zd at 715 (ho1ding that disclosure of grand jury
information to expedite discovery was not warranted especially in light of the
govemment’s promises that witnesses’ identities would remain confidential).
Given that the District’s concern about witness cooperation is at most equal to the
Court’s concern regarding witness cooperation with future grand jury
investigations, it seems that the District has failed to meet its burden to show that
the need for disclosure is greater than the need for continued secrecy.
C. Properly Structured Request
The fast prong of the Douglas 0:'1 test requires that the District show its
request for disclosure is narrowly tailored for only those materials it needs.
Douglas Oil, 441 U.S. at 222. In its reply the District states that disclosure of the
FIT report will allow it to focus on only those witnesses who have relevant
information, Replj) at 3, which is an admission in itself that some of the materials
the District seeks may be of no value to their lawsuit at all, and as such are
materials for which the District has no particularized need. This prong presents
somewhat of a Catch-ZZ, as it is difficult to narrowly tailor a request for
information you don’t know exists. Even still, the District has not provided the
Court with the a description of the information it believes it needs for its defense
other than to say it wants information about "witnesses who reportedly observed
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the incident between the officers and De()nte Rawlings."? Motz'on at 6. The
Court’s in camera review of the FIT report narrowed those witnesses who satisfied
the District’s request to just a few, and, as discussed above, other prongs of the
Douglas Oil test demonstrate that disclosure of their statements is not warranted
With regard to the remaining information in the FlT report none of it is about
witnesses who reportedly observed the shooting and, much, if not all of it, does
not seem relevant to the District’s defense. The request as it is written, which
seeks wholesale disclosure of the FIT rep0rt, is not narrowly tailored and until a
more particular request implicates information in the FIT report, the District has
failed to satisfy the final prong of the test for disclosure. Douglas Oil, 441 U.S. at
222. `
IV. PHOTOGRAPHS
The District also seeks disclosure of photographs of Officer Haskel’s SUV,
which were attached to the FIT report See Motion at 6-7. Presumably these
photographs were presented to the grand jury. But simply because a document has
been presented to the grand jury does not bring it within the scope of Rule 6(e).
Dresser lndus., 628 F.Zd at 1382; In re Grand Jury Impanelled Oct. 2, 1978, 510
F. Supp. ll2, 115 (D.D.C. l981). Additionally documents produced
independently of the grand jury’s investigation are not subject to Rule 6(e). In re
7 ln its original motion the District sought the identities and statements of several MPD
officers involved in the investigation, Motion at 5 , however, as the District acknowledged
that it had independent knowledge of these officers’ identities, it dropped its request for
disclosure of these oH“`icers’ statements in its reply, Reply at l.
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Grand Jury Subpoena, 920 F.Zd at 241; Wash. Post Co., 863 F.Zd at lOO; In re
Grand Jury Investz'gation, 610 F.Zd at 217 ("[T]he disclosure of information
obtained from a source independent of the grand jury proceedings, such as a prior
government investigation, does not violate Rule 6(e)."). Rule 6(e) applies only
where the revelation of such independently produced documents or inforrnation,
which were then presented to the grand jury, would tend to reveal the inner
workings of the grand jury. Wash. Post Co., 863 F.2d at lO0.
Here the photographs the District seeks to produce were taken on
September l7, 2007, eight days before the grand jury’s investigation began
Furthermore, the photographs themselves, which depict a bullet hole in Offxcer
Haskell’s SUV, do not reveal the inner workings of the grand jury. Because the
photographs were produced independently of the grand jury’s investigation and do
not reveal the inner workings of the grandjury they are not protected by Rule 6(e)
and may be produced by the District, if they are within its possession. Id.
V. CONCLUSION
Given that the District has failed to meet its burden on each of the three
components of the Douglas Oz°l test, the Court finds the final, unredacted FIT
report shall not be disclosed, nor shall Sgt. Wax be allowed to testify regarding its
contends, and the District’s motion is DENIED. However, should the District be
unable to mount its defense without this information (aiter attempting to diligently
obtain it or other useful information through normal discovery), the Court would
be willing to reconsider the issue of disclosure in light of those changed
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circumstances See In re Corrugated Container Antitrust Litz’g., 687 F.Zd 52 (Sth
Cir. 1982) (allowing disclosure of grand jury transcripts where witnesses had
difficulty in recalling events and invoked privileges during depositions).
Disclosure of those materials not subject to Rule 6(e), such as the witness
interviews from the night of the shooting, the September 20th preliminary FIT
report, and the photographs of the bullet holes, which were all produced
independently of the grand jury investigation, should be allowed as there is no
justification for affording them a protection to which they are not entitled.
so oRnEREn this j¢;f‘{iay or June 2009.
E, C-
Ro'txeE c. LAN!BERTH
Chief Judge
United States District Court
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